3 Feb 2011

Giving the law and protection against double jeopardy a different dimension altogether, invoking the provisions of the Code of Criminal Procedure, the Supreme Court recently has declared that a person cannot be convicted even for a different offence under a different statute if the facts leading to the conviction under both the statutes are the same. While the decision does not discuss this aspect and is in considerable contrast from the earlier enunciation of law, but on this blog we had earlier written about the Supreme Court decisions itself that the law of double jeopardy protection is not available if the conviction is under different statutes.

Holding that the protection against double jeopardy available under the Code of Criminal Procedure to an accused is much wider than the protection available under the Constitution of India, the Supreme Court in a recent decision [Kolla Veera Raghav Rao v. Gorantla Venkateswara Rao, later reported as AIR 2011 SC 641] explaining this proposition of law inter alia observed as under;

Learned counsel for the appellant submitted that the appellant was already convicted under Section 138 of the Negotiable Instruments Act, 1881 and hence he could not be again tried or punished on the same facts under Section 420 or any other provision of IPC or any other statute. We find force in this submission.

It may be noticed that there is a difference between the language used in Article 20(2) of the Constitution of India and Section 300(1) of Cr.P.C.. Article 20(2) states:

“no person shall be prosecuted and punished for the same offence more than once.”

On the other hand, Section 300(1) of Cr.P.C. States:

“300. Person once convicted or acquitted not to be tried for same office-

(1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under subsection (1) of section 221 or for which he might have been convicted under sub-section (2) thereof.”

Thus, it can be seen that Section 300(1) of Cr.P.C. is wider than Article 20(2) of the Constitution. While, Article 20(2) of the Constitution only states that 'no one can be prosecuted and punished for the same offence more than once', Section 300(1) of Cr.P.C. states that no one can be tried and convicted for the same offence or even for a different offence but on the same facts.

In the present case, although the offences are different but the facts are the same. Hence, Section 300(1) of Cr.P.C. applies. Consequently, the prosecution under Section 420, IPC was barred by Section 300(1) of Cr.P.C.

The Appeal is allowed and the impugned judgment of the High Court is set aside.

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